Exhibit 4.2
POWER-ONE, INC.
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF POWER-ONE, INC.
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No. 2
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Warrant to Purchase
71,059 Shares
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THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR
ANY NON-U.S. OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET FORTH IN
THE SECURITIES PURCHASE AGREEMENT, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM THE COMPANY OR ANY SUCCESSOR
THERETO.
FOR VALUE RECEIVED,
Power-One, Inc., a Delaware corporation (the “
Company ”), hereby certifies that Silver Lake
Technology Investors Sumeru, L.P., its successor or permitted
assigns (the “ Holder ”), is entitled, subject
to the provisions of this Warrant, to purchase from the Company, at
the times specified herein, up to an aggregate of seventy one
thousand fifty nine (71,059) fully paid and non-assessable shares
of Common Stock, par value $.001 per share, of the Company (the
“ Common Stock ”), at a purchase price per share
of Common Stock equal to the Exercise Price (as hereinafter
defined). The number of shares of Common Stock to be received
upon the exercise of this Warrant and the Exercise Price are
subject to adjustment from time to time as hereinafter set forth,
and all references to “Common Stock”, “Warrant
Shares” and “Exercise Price” herein shall be
deemed to include any such adjustment or series of
adjustments.
1.
Definitions .
(a)
The following terms, as used herein, have the following
meanings:
“ Board of Directors
” means the board of directors or comparable governing body
of the Company, or any committee thereof duly authorized to act on
its behalf.
“ Business Day ”
means any day, other than a Saturday, Sunday and any day which is a
legal holiday under the laws of the State of California or New York
or is a day on which banking institutions located in the States of
California or New York are authorized or required by law or other
governmental action to close.
“ Closing Price ”
of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average
of the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S.
securities exchange on which the Common Stock is listed or admitted
for trading or, if the Common
Stock is not listed or admitted for
trading on a U.S. national or regional securities exchange, as
reported on the quotation system on which such security is quoted.
If the Common Stock is not listed or admitted for trading on a
United States national or regional securities exchange and not
reported on a quotation system on the relevant date, the
“closing price” will be the last quoted bid price for
the Common Stock in the over-the-counter market on the relevant
date as reported by the National Quotation Bureau or similar
organization. If the Common Stock is not so quoted, the
“closing price” will be the average of the mid-point of
the last bid and ask prices for the Common Stock on the relevant
date from each of at least three nationally recognized investment
banking firms selected by the Company for this purpose.
“ Current Market Price Per
Common Share ” as of any date means the average of
the Closing Prices per share of Common Stock for each of the five
(5) consecutive Trading Days ending (i) on the Trading
Day prior to the Exercise Date (in the case of Section 2(d))
or (ii) on the earlier of the day in question and the day
before the Ex-Dividend Date with respect to the issuance or
distribution requiring such computation (in the case of
Section 10).
“ Ex-Dividend Date
” means, with respect to any issuance or distribution, the
first date on which the shares of Common Stock trade on the
applicable exchange or in the applicable market, regular way,
without the right to receive such issuance or
distribution.
“ Exercise Price
” means $1.33 per Warrant Share, as adjusted from time to
time in accordance herewith.
“ Expiration Date
” means May 8, 2016 at 5:00 p.m., New York City
time, or if such day is not a Business Day, then on the next
succeeding day that shall be a Business Day.
“ Fair Market Value
” of Common Stock or any other security or property means the
fair market value thereof as determined in good faith by the Board
of Directors, which determination must be set forth in a written
resolution of the Board of Directors, in accordance with the
following rules: (i) for Common Stock or other security traded
or quoted on an Exchange, the Fair Market Value will be the average
of the closing prices of such security on such Exchange over a ten
(10) consecutive Trading Day period, ending on the Trading Day
immediately prior to the date of determination; (ii) for any
security that is not so traded or quoted, the Fair Market Value
shall be determined: (x) mutually by the Board of Directors
and Holder, or (y) by a nationally recognized investment bank,
appraisal or accounting firm (whose fees and expenses will be paid
by the Company) selected by mutual agreement between the Board of
Directors and the holders representing a majority of the
then-outstanding shares of Convertible Preferred Stock; or
(iii) for any other property, the Fair Market Value shall be
determined by the Board of Directors in good faith assuming a
willing buyer and a willing seller in an arms’-length
transaction; provided that if holders representing a majority of
the then-outstanding shares of Convertible Preferred Stock object
to a determination of the Board of Directors made pursuant to this
clause (iii), the Fair Market Value of such property shall be as
determined by nationally recognized investment bank, appraisal or
accounting firm
(whose fees and expenses will be
paid by the Company) selected by mutual agreement between the Board
of Directors and such holders.
“ Market Disruption
Event ” means the occurrence or existence for more than
one half hour period in the aggregate on any scheduled Trading Day
for the Common Stock of any suspension or limitation imposed on
trading (by reason of movements in price exceeding limits permitted
by the primary exchange or trading system on which such shares are
traded) in the Common Stock or in any options, contracts or future
contracts relating to the Common Stock, and such suspension or
limitation occurs or exists at any time before 1:00 p.m. (New
York City time) on such day.
“ Original Issuance
Date ” means May 8, 2009.
“ Securities Purchase
Agreement ” means that certain Securities Purchase
Agreement, dated as of April 23, 2009, between the Company,
SLS and Silver Lake Technology Investors Sumeru, L.P.
“ SLS ” means
Silver Lake Sumeru Fund, L.P.
“ Trading Day ”
means any day on which (i) there is no Market Disruption Event
and (ii) the NASDAQ Global Market or, if the Common Stock is
not listed on the NASDAQ Global Market, the principal national
securities exchange on which the Common Stock is listed, is open
for trading or, if the Common Stock is not so listed, admitted for
trading or quoted, any Business Day. A Trading Day only
includes those days that have a scheduled closing time of
4:00 p.m. (New York City time) or the then standard closing
time for regular trading on the relevant exchange or trading
system.
“ Warrant ” means
this Warrant, issued pursuant to the Securities Purchase
Agreement.
“ Warrant Shares
” means the shares of Common Stock deliverable upon exercise
of this Warrant, as adjusted from time to time.
(b)
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Securities Purchase
Agreement.
2.
Exercise of Warrant; Term .
(a)
Subject to Section 2(e), the Holder is entitled to exercise
the right to purchase the Warrant Shares represented by this
Warrant, in whole or in part, but not for less than 100,000 Warrant
Shares (or such lesser number of Warrant Shares which may then
constitute the maximum number purchasable pursuant to this
Warrant), such number being subject to adjustment as provided in
Section 10, at any time or from time to time after the earlier
of (a) the fifteen-month anniversary of the Original Issuance
Date and (b) the occurrence of a Fundamental Change (as
defined in the Certificate of Designation) until the Expiration
Date. To exercise this Warrant, the Holder shall deliver to
the Company (i) an executed Warrant Exercise Notice
substantially in the form
annexed hereto and (ii) this
Warrant. Upon such delivery and payment (the “
Exercise Date ”), the Holder shall be deemed to be the
holder of record of the Warrant Shares subject to such exercise and
shall have all of the rights associated with such Warrant Shares to
which the Holder is entitled pursuant to this Warrant,
notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Warrant
Shares shall not then be actually delivered to the
Holder.
(b)
If the Holder exercises this Warrant in part, this Warrant shall be
surrendered by the Holder to the Company and a new Warrant of the
same tenor and for the unexercised number of Warrant Shares shall
be executed by the Company within a reasonable time, and in any
event not exceeding three (3) Business Days after the Exercise
Date. The Company shall register the new Warrant in the name
of the Holder or in such name or names of its transferee pursuant
to Section 6 hereof as may be directed in writing by the
Holder, and deliver the new Warrant to the Person or Persons
entitled to receive the same.
(c)
Upon surrender of this Warrant and delivery of the Warrant Exercise
Notice in conformity with the foregoing provisions, the Company
shall transfer to the Holder appropriate evidence of ownership of
any Warrant Shares and/or other securities or property (including
any money) to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, the Holder or such name or
names of its transferee pursuant to Section 6 hereof as may be
directed in writing by the Holder, and shall deliver such evidence
of ownership and any other securities or property (including any
money) to the Person or Persons entitled to receive the same,
together with an amount in cash in lieu of any fraction of a share
as provided in Section 5 below, within a reasonable time, not
to exceed three (3) Business Days after the Exercise
Date.
(d)
Upon exercise of the Warrant pursuant to Section 2(a), the
Holder shall be entitled to receive Warrant Shares equal to the
value (as determined below) of the Warrant (or the portion thereof
being exercised) by surrender of this Warrant and delivery of the
Warrant Exercise Notice, in which event the Company will promptly
issue to the Holder a number of Warrant Shares computed using the
following equation:
X = (A - B) x C
A
where:
X =
the number of Warrant Shares
issuable to the Holder upon exercise pursuant to this
Section 2(d).
A =
the Current Market Price Per Common
Share (as of the Exercise Date).
B =
the Exercise Price (as of the
Exercise Date).
C =
the number of Warrant Shares
issuable under this Warrant or, if only a portion of this Warrant
is being exercised, the portion of the Warrant being exercised (as
of the Exercise Date).
If the foregoing calculation results
in zero or a negative number, then no Warrant Shares shall be
issued upon exercise pursuant to this Section 2(d).
(e)
No Holder will be permitted to exercise the right to purchase
Warrant Shares if and to the extent, following such exercise,
either (i) such Holder’s, together with such
Holder’s Affiliates, aggregate voting power on a matter being
voted on by holders of the Common Stock would exceed 19.9% of the
Maximum Voting Power (as defined in the Certificate of Designation)
or (ii) such Holder, together with such Holder’s
Affiliates, would Beneficially Own (disregarding for this purpose
clause (ii) of the definition of “Beneficially
Own”) more than 19.9% of the then outstanding Common Stock;
provided , however , that such exercise restriction
shall not apply in connection with and subject to completion of
(A) a Public Sale of the Common Stock to be issued upon such
exercise, if following consummation of such Public Sale such Holder
and its Affiliates will not Beneficially Own in excess of 19.9% of
the then outstanding Common Stock or (B) a bona fide
third party tender offer for the Common Stock issuable
thereupon. For purposes of the foregoing sentence, the number
of shares of Common Stock Beneficially Owned by a Holder and its
Affiliates shall include the number of Warrant Shares to be issued
with respect to which a Warrant Exercise Notice has been given, but
shall exclude the number of shares of Common Stock which would be
issuable upon conversion or exercise of (w) the Convertible
Preferred Stock, (x) any Junior Preferred Stock, (y) any
outstanding Notes, and (z) any other outstanding Warrants
Beneficially Owned by such Holder or any of its Affiliates.
Upon the written request of the Holder, the Company shall within
two (2) Business Days confirm in writing to the Holder the
number of shares of Common Stock then outstanding.
3.
Restrictive Legend . Certificates representing shares
of Common Stock issued pursuant to this Warrant shall bear a legend
substantially in the form of the legend set forth on the first
page of this Warrant to the extent that and for so long as
such legend is required pursuant to the Securities Purchase
Agreement or applicable securities laws.
4.
Reservation of Shares; Listing . The Company hereby
agrees at all times to keep reserved for issuance and delivery upon
exercise of this Warrant such number of its authorized but unissued
shares of Common Stock or other securities of the Company from time
to time issuable upon exercise of this Warrant as will be
sufficient to permit the exercise in full of this Warrant.
The Company hereby represents that all such shares shall be duly
authorized and, when issued upon such exercise pursuant to the
terms of this Warrant, shall be validly issued, fully paid and
non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale (other than
restrictions on transfer contemplated by Section 6 or those
created by the Holder) and free and clear of all preemptive
rights. The Company will use its reasonable best efforts to
ensure that the Common Stock may be issued without violation of any
law or
regulation applicable to the Company
or of any requirement of any securities exchange applicable to the
Company on which the shares of Common Stock are listed or
traded.
5.
No Fractional Warrant Shares or Scrip . No fractional
Warrant Shares or scrip representing fractional Warrant Shares
shall be issued upon the exercise of this Warrant. In lieu of
delivery of any such fractional Warrant Share upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal
to such fraction multiplied by the Current Market Price Per Common
Share at the date of such exercise.
6.
Transfer or Assignment of Warrant . Subject to
compliance with the Securities Purchase Agreement, the Holder shall
be entitled, without obtaining the consent of the Company, to
assign and transfer this Warrant or any rights hereunder, at any
time in whole or from time to time in part, but not for less than
100,000 Warrant Shares (or such lesser number of Warrant Shares
which may then constitute the maximum number purchasable pursuant
to this Warrant), such number being subject to adjustment as
provided in Section 10, to any Person or Persons.
Subject to the preceding sentence, upon surrender of this Warrant
to the Company, together with the attached Warrant Assignment
Form duly executed, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee or assignees
named in such instrument of assignment and, if the Holder’s
entire interest is not being assigned, in the name of the Holder
and this Warrant shall promptly be canceled. All expenses
(other than stock transfer taxes) and other charges payable in
connection with the preparation, execution and delivery of the new
Warrants pursuant to this Section 6 shall be paid by the
Company.
7.
Charges, Taxes and Expenses . Issuance of certificates
for Warrant Shares (or other securities) to the Holder upon
exercise of this Warrant shall be made without charge to the Holder
for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company.
8.
Exchange and Registry of Warrant . The Company shall
maintain a registry showing the name and address of the Holder as
the registered holder of this Warrant, and the Company shall be
entitled to rely in all respects, prior to written notice to the
contrary, upon such registry. This Warrant is exchangeable,
upon the surrender hereof by the Holder to the Company, for a new
Warrant or Warrants of like tenor and representing the right to
purchase the same aggregate number of Warrant Shares.
9.
Loss, Theft, Destruction or Mutilation of Warrant .
Upon receipt by the Company of evidence satisfactory to it (in the
exercise of its reasonable discretion) of the loss, theft,
destruction or mutilation of this Warrant, and in the case of any
such loss, theft or destruction, upon the receipt of a bond,
indemnity or security reasonably satisfactory to the Company, and
upon surrender and cancellation of this Warrant, if mutilated, the
Company shall execute and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and
date and representing the right to purchase the same aggregate
number of Warrant Shares as provided for in such lost, stolen,
destroyed or mutilated Warrant.
10.
Anti-dilution Provisions .
(a)
Adjustment for Change In Capital Stock .
(i) If the
Company shall, at any time and from time to time while this Warrant
is outstanding, issue a dividend or make a distribution on its
Common Stock payable in shares of its Common Stock to all or
substantially all holders of its Common Stock, then at the opening
of business on the Ex-Dividend Date for such dividend or
distribution:
(A) The
Exercise Price will be adjusted by multiplying such Exercise Price
by a fraction: (1) the numerator of which shall be the number
of shares of Common Stock outstanding at the close of business on
the Business Day immediately preceding such Ex-Dividend Date; and
(2) the denominator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the
Business Day immediately preceding the Ex-Dividend Date for such
dividend or distribution, plus the total number of shares of Common
Stock constituting such dividend or other distribution.
(B) The
number of Warrant Shares will be adjusted by multiplying such
number by a fraction: (1) the numerator of which shall be the
Exercise Price immediately prior to the adjustment pursuant to
Section 10(a)(i)(A); and (2) the denominator of which
shall be the Exercise Price immediately after such
adjustment.
If any dividend or distribution of
the type described in this Section 10(a)(i) is declared
but not so paid or made, the Exercise Price and number of Warrant
Shares issuable shall again be adjusted to the Exercise Price and
number of Warrant Shares issuable which would then be in effect if
such dividend or distribution had not been declared. Except
as set forth in the preceding sentence, in no event shall the
Exercise Price be increased or the number of Warrant Shares
issuable be decreased pursuant to this
Section 10(a)(i).
(ii) If
the Company shall, at any time or from time to time while this
Warrant is outstanding, subdivide or reclassify its outstanding
shares of Common Stock into a greater number of shares of Common
Stock, then the Exercise Price in effect at the opening of business
on the day upon which such subdivision becomes effective shall be
proportionately decreased, and conversely, if the Company shall, at
any time or from time to time while this Warrant is outstanding,
combine or reclassify its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then the Exercise Price
in effect at the opening of business on the day upon which such
combination or
reclassification becomes effective
shall be proportionately increased. In each such case,
effective immediately after the opening of business on the day upon
which such subdivision, combination or reclassification becomes
effective:
(A) The
Exercise Price shall be adjusted by multiplying such Exercise Price
by a fraction: (1) the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
subdivision or combination and (2) the denominator of which
shall be the number of shares of Common Stock outstanding
immediately after giving effect to such subdivision, combination or
reclassification.
(B) The
number of Warrant Shares will be adjusted by multiplying such
number by a fraction: (1) the numerator of which shall
be the Exercise Price immediately prior to the adjustment pursuant
to Section 10(a)(ii)(A) and (2) the denominator of
which shall be the Exercise Price immediately after such
adjustment.
(b)
Adjustment for Rights Issue . If the Company shall, at
any time or from time to time while this Warrant is outstanding,
distribute rights, options or warrants to all or substantially all
holders of its Common Stock entitling them, for a period expiring
within 60 days after the record date for such distribution, to
purchase shares of Common Stock, or securities convertible into, or
exchangeable or exercisable for, Common Stock, in either case, at
less than the average of the Closing Price for the five consecutive
Trading Days immediately preceding the first public announcement of
the distribution, then, effective immediately after the opening of
business on the Ex-Dividend Date:
(i)
The Exercise Price shall be adjusted so that the same shall equal
the price determined by multiplying the Exercise Price in effect at
the opening of business on the Ex-Dividend Date for such
distribution by a fraction: (A) the numerator of which shall
be the number of shares of Common Stock outstanding on the close of
business on the Business Day immediately preceding the Ex-Dividend
Date for such distribution, plus the number of shares of
Common Stock that the aggregate offering price of the total number
of shares of Common Stock issuable pursuant to such rights, options
or warrants would purchase at the Current Market Price Per Common
Share on the declaration date for such distribution (determined by
multiplying such total number of shares of Common Stock so offered
by the exercise p
